"Right and Left Join to Take On U.S. in Criminal Justice Cases"
The New York Times
November 24, 2009
By Adam Liptak
In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.
But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.
The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.
[...]
Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)
The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.
“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.” ... (Read on at nytimes.com)
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"A Question of When Dishonesty Becomes Criminal"
The New York Times
October 12, 2009
By Adam Liptak
In February, Justice Antonin Scalia wrote that federal prosecutors had developed an unseemly crush on a particularly vague law, one that had “been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.”
Justice Scalia was writing to protest the Supreme Court’s decision not to hear an appeal from three city officials in Chicago who had been convicted of violating the law, which makes it a crime “to deprive another of the intangible right of honest services.”
If you can make sense of that phrase, you have achieved something that has so far eluded the nation’s appeals courts.
“How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit, in New York, asked in a 2003 dissent.
[...]
The honest services law is but one example of what Harvey A. Silverglate, a civil liberties lawyer in Boston, calls “an over-criminalization problem.” His new book, “Three Felonies a Day: How the Feds Target the Innocent,” argues that the average American professional unwittingly commits several serious crimes each day.
“Even the most intelligent and informed citizen (including lawyers and judges, for that matter),” Mr. Silverglate writes, “cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.” ... (Read on at nytimes.com)
"Arrest Over Software Illuminates Wall St. Secret"
The New York Times
August 23, 2009
By Alex Berenson
Mr. [Sergey] Aleynikov, who is free on $750,000 bond, is suspected of having taken pieces of Goldman [Sachs] software that enables the buying and selling of shares in milliseconds. Banks and hedge funds use such programs to profit from tiny price discrepancies among markets and in some instances leap in front of bigger orders.
[…]
This spring, Mr. Aleynikov quit Goldman to join Teza Technologies, a new trading firm, tripling his salary to about $1.2 million, according to the complaint. In the days before he left, he transferred code to a server in Germany that offers free data hosting.
[…]
Harvey A. Silverglate, a criminal defense lawyer in Boston not involved in the case, said he was troubled that the F.B.I. had arrested Mr. Aleynikov so quickly, without evidence that he had made any effort to use or sell the code. Such disputes are generally resolved civilly rather than criminally, Mr. Silverglate said.
“It is astonishing that the F.B.I. arrested this defendant at all,” he said. Other firms have also sued former employees recently over concern about high-frequency trading software, though two similar cases are the subject of civil suits rather than criminal prosecution. ... (Read on at nytimes.com)